1611101 (Refugee)

[2019] AATA 4786

1611101 (Refugee) [2019] AATA 4786 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

[1]

[1] The applicant has indicated that the correct transliteration from Urdu of his family name is [name]. However, an official incorrectly recorded the name on his Secondary School Certificate as [applicant surname], and this has been replicated in his passport and other official documents.

CASE NUMBER:  1611101

COUNTRY OF REFERENCE:                 Pakistan

MEMBER:James Silva

DATE:2 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 August 2019 at 3:12pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – Muslim – Christian convert – relationship with a Christian – alleged conflict with family – lessons with Pastor – limited understanding of Christianity – has not been baptised – credibility issues – limited evidence regarding girlfriend – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MZAFZ v MIBP [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a [age] year old man from Pakistan, who claims to be a citizen of that country.

2. The applicant arrived in Australia [in] February 2013 as the holder of a student visa (subclass 573). He applied for a protection (class XA) visa on 16 September 2015. On 5 July 2016, the delegate of the Minister for Home Affairs (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

5. The issue in this case is whether Australia has protection obligations in respect of the applicant. This occurs if the applicant meets the refugee criterion, and if not, if he is entitled to complementary protection. A summary and excerpts of the relevant law are at the attachment to this decision.

   CLAIMS AND EVIDENCE

   Protection claims

6. The applicant was born into a Muslim family, but claims to identify as a Christian. He first became interested in Christianity when dating a Christian girl in Pakistan, but he kept the relationship quiet. A few months after he came to Australia in February 2013, his parents pressed him to return to Pakistan to marry a cousin. The applicant refused, and told his parents that he was in love with a Christian. In response, his family disowned him. News has spread to other relatives and to others in the community (such as the tribal assembly, jirga). In Australia, the applicant has taken private lessons in Christianity, and a pastor has testified that the applicant can be baptised in the future. The applicant claims that his interest in Christianity – such as his willingness to have a relationship with a Christian in Pakistan and, more recently, a woman in [Country 1]; his study of Christianity and future baptism; and his refusal to marry his cousin – could motivate his immediate or extended family, or members of the community, to inflict serious or significant harm on him.

   Background

7. The applicant is a [age] year old man from Mansehra, in the eastern part of Khyber Pakhtunkhwa province. His languages are Urdu and English. He did not provide details of his ethnicity, religion or occupation on his application form.

8. The applicant was born in Mansehra, but his early school years were spent in [a city], Punjab province, including an English medium primary school. The family later returned to Mansehra where the applicant completed his secondary school and college, achieving a [Diploma] in [year]. The applicant then worked as an [occupation] in a [business].

9. The applicant is unmarried. His father [worked] in a [factory] for 30 years or so, and became a [position]. He is the youngest of [number] children, and the only one who is not married. His  [brothers], their wives and their children (the applicant has [number] nephews and nieces from his brothers) all live with the applicant’s parents in a large home in Mansehra. The applicant said that one brother is a government employee; another has retired from the [defence forces]; and yet another works in [another position] His [sisters] live with their families in the Mansehra area.

10. The applicant said that he is in contact with his mother, one [brother], and one sister. He said that the telephone calls are basically just to check on each other’s welfare.

11. The applicant holds a Pakistan passport issued in [2011], valid to [2016]. At hearing, he presented a replacement passport issued in [2016] by the Consulate [in] [City 1]. He said that he had no difficulties obtaining the passport, although the processing took about two months, as the consulate had to refer the matter back to Pakistan.

12. As noted in the delegate’s decision record, the applicant arrived in Australia [in] February 2013, on a student visa that was cancelled on 19 February 2014. He applied for protection on 16 September 2015. The applicant told the Tribunal that he studied for several months, but his conflict with his parents caused him to lose all focus, and eventually abandon his studies. He travelled to [Town 1], in [NSW], where he stayed for about 18 months. He lived with an Indian family, who provided accommodation and food in return for the applicant’s help with their business. The applicant moved to [another city], and now lives in [a suburb of City 1].

13. The Tribunal explored with the applicant his living arrangements in Australia, as these provide context for assessing his claim that ‘his interest in Christianity has extended to new levels’ in recent years. The applicant was circumspect on these issues. He said that he does not have permission to work (his bridging visa is subject to condition 8101, ‘no work’), and the Tribunal formed the impression that he was not forthcoming when asked how he spent his time. He said that he is in a share house with [other] men, all Muslims from Pakistan. He does not do anything, just helping around the home or spending time with friends. The applicant said that he is dependent on one of his housemates, [Mr A], for his expenses and spending money.

14. The applicant claims to be in a current relationship with a Christian girl. At hearing, he said that his girlfriend is a [age] year old [Country 1] citizen named [Ms B], from [location]. He met her through a dating website in August 2018 (hence, almost a year ago). She plans to visit Australia sometime in the coming months. The couple plan to marry during her stay, but will make arrangements after she has arrived in Australia. The applicant’s representative observed that the applicant was guarded about these arrangements, because he did not want [Ms B’s] entry into Australia on an Electronic Travel Authority visitor visa to be jeopardised by any suggestion that she would marry here and try to stay longer. The applicant said that the couple had not met in person, and that their communications were mainly via [encrypted messenger service], usually via video.

    Evidence

15. The evidence before the Tribunal includes the following relevant material (from the Department and the Tribunal files):

    §  The protection visa application form, with attachments, lodged on 16 September 2015. The applicant set out his protection claims in a separate brief statement.

    §  The applicant provided a partial copy of his Pakistan passport (biodata page only), issued [in] 2011, and valid for five years. At the second hearing session, he also presented his current passport, issued in [City 1] [in] 2016.

    §  The applicant attended a protection visa interview (‘Department interview’) on 30 June 2016, a recording of which is on the Department file.

    §  The delegate’s protection visa decision record (‘delegate’s decision record’) of 5 July 2016.

    §  Review application form, lodged on 21 July 2016. The applicant attached to the application form a copy of the delegate’s decision record.

16. The applicant appeared before the Tribunal on 23 July 2019 and 31 July 2019, to give evidence and present arguments. The hearing was conducted almost entirely in English, in which the applicant is fluent. However, an Urdu interpreter was present to assist if needed. The applicant’s representative, [Mr C] of [a company], attended the hearing on both dates.

17. On the afternoon before the first hearing, the Tribunal contacted the applicant’s representative to check whether the applicant would attend the hearing, as he had not replied to the Tribunal’s hearing invitation. Shortly thereafter, the representative sent a request for the hearing to be rescheduled, on medical grounds. The applicant then provided a medical certificate from [Dr D] of [a medical centre] advising that he is suffering from ‘[Medical Condition 1]’, and was ‘unfit for his normal duties from 22/7/2019 to 23/7/2018 inclusive’. The Tribunal contacted [Dr D] by telephone. He advised that the applicant had attended his clinic for the first time that day, reporting [Medical Condition 1]. He did not know what the applicant did for a living (i.e. what his ‘normal duties’ were), but opined that the applicant would be able to attend a Tribunal hearing. The Tribunal declined the request to reschedule the hearing. The applicant and [Mr C] attended on 23 July 2019. Following the Tribunal’s introduction, the applicant explained that he suffers from recurrent [pain]. As he does not have any income or a Medicare card, he cannot afford to see a doctor, and relies on non-prescription medication. The applicant was bent forward in his seat and said that he was still in ‘severe pain’. The Tribunal accordingly adjourned the hearing for the following week.

18. The applicant did not mention any medical issues at the resumed hearing on 31 July 2019, and the Tribunal observed nothing to suggest that he was in discomfort.

19. On 25 July 2019, the Tribunal received a pre-hearing submission dated 23 July 2019, which briefly updates the applicant’s experiences in Australia. On 31 July 2019, during the course of the resumed hearing, the Tribunal received a copy of a statutory declaration from [Pastor E], addressing the applicant’s interest in learning about Christianity.

    Non-disclosure certificate

20. The Department issued a certificate under s.438 of the Act, certifying that the information in certain folios of Department file [number] was subject to paragraph 438(1)(a), as disclosure of it would be contrary to the public interest. The certificate relates to:

    §  Folio 64: A copy of the applicant’s PRISM (Provider Registration and International Student Management System) record relating to the applicant; and

    §  Folio 77: An earlier version of a disclosure decision checklist, in which the examining officer determined that the file contained no documents subject to s.437 or s.438.

21. The certificate identified the public interest as being that the folios ‘contain information relating to an internal working document and business affairs’. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal notes further that the identified folios contain no material that is relevant to this decision. The Tribunal advised the applicant and his representative of these views at hearing. They noted them without comment.  

    [2] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

    Receiving country

22. The applicant claims to be a national of Pakistan. He holds a Pakistan passport; speaks Pashto and Urdu; and showed his familiarity with that country. There is nothing to suggest that he has the nationality of any different or additional country.

23. The Tribunal is satisfied that the applicant has the nationality of Pakistan, which is therefore the receiving country for the purpose of assessing his claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

24. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

25. The Tribunal has significant concerns about the credibility of the applicant’s protection claims, and specifically his claimed ‘interest’ in Christianity.

    Delay in seeking protection

26. The applicant arrived in Australia in February 2013, but did not seek protection until September 2015, more than 2½ years later. This included a period in which he was in Australia without permission. The applicant said that he made a mistake in not applying earlier, but his family’s rejection of him caused him to lose focus (implicitly, on both his studies and his migration status). Furthermore, he did not have information about protection visas, and thought that these were available only for people who had arrived by boat. He was fearful of being deported to Pakistan. He appeared to claim that he was afraid that any engagement with the Department could result in his return there).

27. The Tribunal views these explanations with scepticism. As noted at hearing, the applicant speaks excellent English, has contacts within the South Asian community and undertook travel within Australia. All this suggests that he could have made enquiries, and/or would have been aware that protection is not exclusively for persons who are unauthorised maritime arrivals. The Tribunal considers that he could have made enquiries if he needed protection. Although the applicant commented that his English has improved as a result of his on-line chats with his [girlfriend], the Tribunal notes that he attended an English medium primary school and enrolled to study at a tertiary level in Australia. In the Tribunal’s view, the applicant’s failure to seek protection for more than 2½ years after arriving in Australia strongly suggests that he does not genuinely fear persecution or significant harm in Pakistan, and is not a person in need of protection.  

    Experiences in Pakistan

28. The applicant wrote in his protection visa application that his interest in Christianity was sparked by a relationship he had with a Christian girl in Mansehra. He put it in the following terms:

    We became friends via [social media] in around 2008. Since then I started taking [an] interest in her and Christianity. We both fell in love and started meeting at some secret places. We wanted to get marr[ied] as soon as it would become practicable. I could not mention this to my parents as I was scared of fundamentalism present everywhere in our society.

29. The delegate accepted that: ‘the applicant had a Christian girlfriend with whom he lost contact and he has maintained an interest in, and favourable view of, Christianity’.[3]

    [3] This text is from the delegate’s decision record, a copy of which the applicant provided to the Tribunal with his review application.

30. The Tribunal explored this in further detail at hearing, given its potential significance to his claims, as the seeds of his interest in Christianity. In response to the Tribunal’s questions, the applicant said that the name of his former girlfriend was [Ms F]. He believes that she was a Roman Catholic, part of a small Christian community in Mansehra. As a whole, people tend to shun the Christians living there.

31. The applicant said that he met [Ms F] in college, and they kept in touch with each by telephone. There was no opportunity for them to meet in private (or in secret places), given the constraints of Mansehra’s conservative society. The applicant said that he has no evidence of the relationship.

32. The applicant said that a few months before leaving Pakistan, he confided in his mother about the relationship. Her displeasure signalled to him that the family would not react well, and he became scared. He changed his telephone number and stopped all contact with [Ms F], without warning. Meanwhile, his mother encouraged family members to send him abroad (in order to head off danger).

33. The Tribunal asked the applicant about the extent of his exposure to Christianity in Pakistan, through [Ms F]. He said that they did not discuss religion much, but he was attracted to her through her humble and relaxed personality. He implied that her conduct said something to him about the nature of Christianity. Muslim girls, by contrast, were subject to cultural and religious constraints, and it was difficult to talk to them.

34. In response to the Tribunal’s questions, the applicant said that, after deciding to cut off all contact with [Ms F], he has no further information about her. He has not asked any mutual friends about her, and he is not sure if she is on social media.

35. The Tribunal noted that the applicant’s written claims and his oral evidence differed. For instance, there was no hint in his written statement that anyone in his family found out about his contacts with a Christian girl until after he arrived in Australia. On that point, the applicant reiterated that his mother knew earlier, and the other family members found out about [Ms F] only later on. The Tribunal also referred to the applicant’s written claim that, after arriving in Australia, he told his family ‘that [he] always loved a Christian girl and that [he] would marry her as she is still waiting for [him…]’. This seemed inconsistent with his oral evidence that he cut off contact with [Ms F] completely, several months before leaving Pakistan. The applicant explained that he lied to his family about his ongoing relationship, to fend off their demand that he marry a cousin. The Tribunal finds this explanation unpersuasive. As it put to the applicant, there is no apparent reason why, if he had ceased all contact with [Ms F] months earlier, he had to tell his family that he was in love with a Christian girl. In response, the applicant said that by that time, most of his family already knew about [Ms F] – perhaps his mother had told them. Again, this does not sit well with his written claims. In later evidence, the applicant also said that he used the relationship with [Ms F] as an excuse not to marry his cousin, as no one would have believed that he had fallen in love during his brief stay in Australia.

36. Overall, the Tribunal finds the applicant’s evidence about the relationship with [Ms F] and his initial exposure to Christianity to be uncertain, confused and changeable. It is not prepared to accept at face value that the applicant had any relationship with a Christian girl in Mansehra; that she inspired him to become interested in Christianity, through her conduct or any discussions; that he was fearful of having such contacts; or that his mother (and later other relatives) learned of his contacts and perceived him to have turned his back on Islam.

    Experiences in Australia

    Family’s discovery of the applicant’s relationship with a Christian girl

37. As noted above, the applicant wrote in his statement of claims that his family learned of his relationship with a Christian girl after he informed them about it, and the couple’s plans to marry. In response, they said that he should not be thinking of marrying a Christian, as it would stigmatise the whole family and put all of them at risk, as Mansehra is a ‘fundamentalist area’. Consequently, they disowned him. News of the relationship and plans spread to members of the extended family, and from there to fundamentalists. His family have been denying the rumours, for their safety.

38. At hearing, the applicant impressed on the Tribunal that he is the youngest of [number] siblings, and the only unmarried one. He said that things were fine for the first six or eight months after his arrival in Australia, but his parents later telephoned him and demanded that he return to Pakistan and marry a cousin, [Ms G].  He said that he told his parents that he does not know [Ms G] well, and that he wanted to stay in Australia to learn about Christianity. After the Tribunal reminded him of his statement that he told them about [Ms F] at that point, he confirmed that, adding that by that stage, they all knew anyway.

1. The applicant said that, after his family learned about his relationship with [Ms F] and their plans to marry, ‘all hell broke loose’. His family cut off contacts with him, except for his mother, one brother and one sister. The others refuse to talk to him. There has been no public announcement that he is ‘disowned’ (as is sometimes the practice in South Asia), in large part because his family wants to avoid any public humiliation that might come from knowledge of his son’s contacts with a Christian. As for the possibility of Muslim men marrying Christian women if the latter were prepared to convert, the applicant said that his conservative society condemns all contact with Christian girls before marriage.

2. The Tribunal accepts that the applicant is the youngest child, and is unmarried. At hearing, it wondered why the applicant’s family had waited until his arrival in Australia before pressing him to return to Pakistan to marry a local girl, rather than make arrangements prior to his departure. His reply – that his family demanded he marry [Ms G] after they discovered his relationship with [Ms F] – again confuses the sequence of events, reinforcing the Tribunal’s doubts about the truthfulness of these claims.

3. The Tribunal accepts, on the basis that it is plausible and consistent with general country information about Pakistani social norms, that the applicant is a nominal Muslim; that his family may have put him under some pressure to get married, or perhaps marry a nominated cousin; and that the applicant has resisted this pressure. However, in light of the above concerns, the Tribunal does not accept that the applicant was in a prior relationship with a Christian girl; that he told his parents about such a relationship (past or ongoing) as a means of resisting their pressure to marry a Muslim girl; or that his parents, extended relatives or others (including ‘fundamentalists’) regard him as having defied Islamic or cultural norms by having contact with a Christian girl.

4. The Tribunal accepts, on the basis that it is plausible, that the applicant has infrequent or only superficial contact with family members, in part due to his prolonged residence in Australia. However, it does not accept that they have ‘disowned’ him, threatened him or signalled any malevolence as a result of any past relationships or his attitude towards Islam (real or perceived).   

   Interest in Christianity

5. The applicant wrote in his statement of claims, submitted in September 2015, that he had been ‘deeply impressed by the core values of freedom and equality in many areas of life’ in Australia; that he had become ‘an ardent reader of Christian literature’; and that he had decided to convert to Christianity.

6. As noted in the delegate’s decision record of 5 July 2016, the applicant indicated that he is not a religious person or a practising Christian. He showed a very basic knowledge of Christianity, and said that he had not attended church at any time.

7. At the Tribunal hearing on 31 July 2019, there was broad discussion about the applicant’s religious views and his interest in Christianity. The key points to emerge were:

   §  The applicant said that he did not engage with religious issues in his first couple of years in Australia. He was trying to deal with his ‘situation’ (i.e. the alleged conflict with his family, his migration status and his fear of deportation to Pakistan). Moreover, he is a shy person and had little contact with others.

   §  He met [Pastor E], community chaplain of [a named church], about 18 months ago, and they have had good interaction. [Pastor E] invited the applicant into his home, and has given him private lessons in Christianity, on and off over the past year or so.

   §  As noted in the submission of 23 July 2019, the applicant’s interest in Christianity ‘has [now] extended to new levels’. He attributed these to [Pastor E’s] private lessons, and also the encouragement that his current girlfriend has provided him. [Pastor E] ‘believes that in time to come, [the applicant] can become baptised’.

   Commitment to Christianity

8. At hearing, the applicant spoke fluently about some key teachings, such as Jesus’ role in atoning for the sins of humankind; the crucifixion; and the role of the Virgin Mary. However, he appeared to have snippets of information, rather than any real context or personal practice in which to understand them. For instance, while he mentioned the resurrection, and knew that Easter and Christmas were important, he could not relate Good Friday or Easter Sunday to particular teachings. He did not know the text of the Lord’s Prayer, in either Urdu or English; and he was not familiar with the Ten Commandments (or any similar set of biblical principles).

9. The applicant said that he has not attended any church in Australia, or any other religious gathering apart from the private lessons he obtains with [Pastor E] in response to the Tribunal’s observation that communal worship is often an important part of religious practice, the applicant explained that he is generally shy. He also stated that he associates with Muslims in Australia, and in particular, is financially dependent on his housemate [Mr A]. He knows with certainty that they would react harshly if they discovered his interest in Christianity. [Pastor E] echoed this in his comment that the applicant ‘was reluctant to be exposed publicly’. In response to further questions, he said that has not explored any Christian resources or groups on-line, despite his evidence elsewhere that he had met [a woman] on an on-line dating website. Similarly, the applicant said that he had no examples of having communicated with anyone on any Christian matters, including through private, encrypted channels. He said that he has discussed this with his [girlfriend], but only through video.

10. The Tribunal appreciates the need for caution in testing a person’s knowledge of religious doctrine or their personal religious practice, in forming a view on their commitment. In the present case, the applicant invited the Tribunal to take into account both his shyness and his fear that Muslim friends would reject his interest in Christianity, and cause him problems in Australia and/or Pakistan. The Tribunal finds these explanations somewhat contrived, and does not accept them at face value. First, while it cannot reach any firm view as to the applicant’s personality or shyness, it is surprising that he did not at least explore options on-line or through [Pastor E] to make contact with other Pakistanis or Muslims who share an interest in Christianity (just as he claims to have found a girlfriend on a dating site). Second, the Tribunal does not accept that the applicant is afraid of engaging in Christian practice in Australia because of the fear of rejection by Muslims in Australia; or because of the fear that his Muslim housemate [Mr A] would cut off his financial support and leave him destitute. By his own evidence, the applicant lived with an Indian Sikh family in [Town 1] for about a year-and-a-half. As the Tribunal put to the applicant at hearing, if it were true that he cannot practice Christianity because of his financial reliance on [Mr A], it is surprising that he did not discuss this with [Pastor E] and check what other financial and spiritual support might be available to overcome this problem.

11. In summary, the Tribunal considers the applicant’s knowledge of Christianity to be piecemeal, and his practice to be negligible. This casts strong doubt over his claim to have any genuine interest in Christianity, let alone any commitment to the faith, particularly in light of his lengthy stay in Australia.  

    Interaction with [Pastor E]

12. The applicant said that he visits [Pastor E] at his home in [a suburb] every so often, for lessons in Christianity.

    §  The applicant said that the visits usually take place on the weekend, and he and [Pastor E] spend half an hour, an hour or perhaps longer taking about Christianity. [Pastor E] has both a Bible and a Koran, and explains the Bible to the applicant. [Pastor E] had commented that it would be difficult for the applicant to understand the Bible without comparing it with the Koran. Asked whether there is any format or schedule for these studies (such as might be common in Bible study groups), the applicant responded that they simply talk about various things. For instance, on the Sunday before the hearing, [Pastor E] and he talked about world politics, and the problems facing Muslim countries because they do not believe in Jesus.

    §  The Tribunal asked whether [Pastor E] has communicated with the applicant other than during their lessons, for instance, during Christmas or Easter, or to invite him to any events. The applicant replied briefly that he has not.

    §  The applicant said that he travels to [Pastor E’s] home by public transport or car. Sometimes his friend [Mr A] drops him off nearby; the applicant just tells him that he is visiting a friend. Sometimes the applicant borrows [Mr A’s] car and drives himself there.

    §  The Tribunal received a statutory declaration from [Pastor E]. He declared that the applicant approached him in about June 2018, indicating his interest in learning about Christianity. They related well to each other, as they are both from Pakistan. The applicant revealed to [Pastor E] that he was looking for ‘inner peace’, and that he had been unable to find that in Islam. [Pastor E] confirms that he gives the applicant private lessons in Christianity, usually once a week. He states: ‘I believe that [the applicant] now has a better understanding of concepts such as the Bible as the word of God, divinity of Jesus Christ and about salvation through Christ.

    §  [Pastor E] concludes that the applicant ‘is hopeful he could be baptised in the near future, and I have encouraged him to keep learning Christian values’.

13. The Tribunal accepts that the applicant has met regularly with [Pastor E] since mid-2018, taking into account (among other things) [Pastor E’s] statutory declaration, and the applicant’s apparent familiarity with his home. However, the Tribunal has a number of concerns as to whether this contact signals any genuine commitment to Christianity; or whether it is still in the very early stages of exploring the faith; or whether it is merely to bolster his protection claims (and hence, his bid for permanent residency). First, the timing of the applicant’s contact with [Pastor E], more than five years after his arrival in Australia, raises questions at least as to whether it is a continuation of his longstanding interest in Christianity, as claimed. Second, [Pastor E’s] letter referred to teaching the applicant about ‘the values of Christianity and about the life of Jesus’. The applicant said that he and [Pastor E] engaged in some comparative discussion of the Bible and Koran, and the position of both religions in world politics. All these comments suggest that the applicant’s discussions about Christianity are in the exploratory stages only. Third, [Pastor E’s] non-committal reference to the applicant’s hope to be baptised in the future, namely that he (the pastor) has ‘encouraged him to keep learning about Christian values’, further suggests that the applicant has only a superficial knowledge of and commitment to the faith.

14. In sum, the Tribunal accepts that the applicant has visited [Pastor E’s] home to discuss Christianity for about a year.  The available evidence strongly suggests that the applicant appreciates [Pastor E’s] pastoral care and company, and that his exploration of Christianity is at an early stage only. The Tribunal places little weight on these meetings as evidence that the applicant has a genuine interest in or commitment to Christianity. The applicant’s contacts with [Pastor E] do not overcome the Tribunal’s significant doubts that he has no genuine interest in or commitment to the faith, and is not perceived to.

    Christian girlfriend in [Country 1]   

15. The submission of 23 July 2019 states that the applicant ‘has a Christian girlfriend who has talked to him about finding peace with God, and the essentials of Christianity as a non-violent and a loving religion which he says contrasts with current trends of Islam, where so much is about revenge and killings’.

16. The applicant told the Tribunal that he met a [age] year old [woman], [Ms B] from [Country 1], on a dating website. She is a student and [is employed]. She will visit Australia in a few months, on an Electronic Travel Authority (ETA) visa. The couple plan to marry while she is here. [Mr C] told the Tribunal that the applicant is understandably guarded about details of [Ms B’s] identity, etc., as he does not want to jeopardise her chances of entering Australia on a temporary visitor visa. He said that the couple plan to marry, but they have made no firm plans yet. The Tribunal formed the impression that the applicant and [Ms B] are looking forward to meeting in person, and have not yet made any commitment or plans regarding their future contacts.

17. The applicant said that [Ms B] attends a Baptist church. He said that he is a ‘practising Christian’, and encourages him to convert, but is not pushy about it. Asked whether he has any examples of messages with religious content, the applicant said that they communicate via [an encrypted app], mostly via its video facility. He therefore has no relevant material.

18. In summary, the applicant’s claim that [Ms B] encourages him in relation to Christianity is unsubstantiated. The applicant’s limited knowledge of Christianity; his minimal involvement in any related activities, apart from lessons with [Pastor E]; and his lack of demonstrated interest or curiosity, lead the Tribunal to disbelieve that he and [Ms B] exchange any views on Christianity at all.    

    Summary of findings

19. In light of the above analysis, the Tribunal does not accept that the applicant had any exposure to or interest in Christianity in Pakistan, through a girlfriend or in any other capacity. It does not accept that he has had any conflict with his parents, extended family or broader community (including the tribal jirga) arising from any such contacts, or any perceived interest in Christianity.

20. The Tribunal accepts that from mid-2018, the applicant has visited [Pastor E] at his home, and discussed Christian values, comparisons between Christianity and Islam, and matters relating to the applicant’s welfare and ‘inner peace’. However, given the applicant’s limited knowledge of Christianity after more than six years in Australia, his lack of involvement in any church or similar activities; and his lack of personal enquiry or contacts (even on-line or in other protected environments), the Tribunal does not accept that he has any genuine interest in or commitment to Christianity. It is not satisfied that his initial preoccupation in Australia with his studies, his migration status or any tension with his parents (over other matters); or his claimed fear that Muslims in Australia will cause him problems adequately address his lack of demonstrated interest in Christianity. It finds that the applicant’s regular contact with [Pastor E] may have provided him with some community support and company, and scope to discuss religion and politics generally, but it finds that the applicant’s main purpose has been to bolster his protection claims. It accepts that he has raised with [Pastor E] the prospect of getting baptised, but finds that he has done this in order to bolster his protection claims, and not as a reflection of any genuine commitment.

21. The Tribunal accepts that the applicant has met a [woman] on-line; that she plans to visit him later this year; and that they will then see how things develop. The Tribunal does not accept on the available material that the applicant and this woman have discussed any religious matters, including the applicant’s claimed interest in Christianity.  

22. The Tribunal concludes that the applicant is not a Christian; that he has no genuine plans to convert to the faith; and that no one (including his parents, broader family or community) perceive him as having abandoned or insulted that faith. The Tribunal finds that the applicant is nominally Muslim, but has no real engagement with religion.

23. The Tribunal accepts that the applicant may have come under some pressure from his family to marry. Given its adverse view of the applicant’s credibility as a whole, it does not accept that they have rejected or disowned him, due to his past refusal to marry or cousin (or his now-rejected claim to have been in love with a Christian). It does not accept that his family, his extended family, the community or members of the jirga have any adverse interest in him, for any reason.

    ASSESSMENT: REFUGEE CRITERION

24. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors such as the applicant’s future conduct, there is a real chance of him experiencing serious harm amounting to persecution if he returns to Pakistan, for any one or more of the reasons enumerated in s.5J(1).

25. The Tribunal has rejected the applicant’s claims to be a Christian or to have any genuine interest in or commitment to the faith. It also does not accept that his family or community members perceive him to be Christian, or anti-Islamic, as it does not accept that he was in a past relationship with a Christian girl or that he has engaged in any activities in Pakistan or Australia that have come to their attention and that might cause them concerns.

26. The Tribunal accepts that the applicant has met with [Pastor E] in [City 1] on a number of occasions over the past year. Section 5J(6) requires the Tribunal to disregard any conduct engaged in by the applicant in Australia unless it is satisfied that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal is satisfied that the applicant gained at least some social and welfare benefits from his discussions with [Pastor E], even though it considers his main motive was to learn about Christianity in order to bolster his prospects of being granted protection as a refugee. This conduct therefore does not fall within the scope of s,.5J(6). The applicant told the Tribunal that even his housemate and close friend [Mr A] knows nothing about his interest in Christianity, or his visits to [Pastor E]; and that, in any event, he is shy and reclusive. Although the Tribunal is disinclined to accept these statements at face value (given the extent of its concerns about the applicant’s credibility), it finds on the available material that no one has knowledge of or any interest in the applicant’s visits to [Pastor E]. It finds there is no real chance of compatriots or fellow Muslims in Australia, or persons in Pakistan, inferring from the applicant’s visits to [Pastor E] that he is planning to convert to Christianity or turn away from Islam. Accordingly, there is no real chance of anyone inflicting serious harm amounting to persecution for reason of religion.

27. The applicant impressed on the Tribunal that he has been extremely cautious in exploring Christianity in Australia, in large part due to his fear of the reactions of Muslims in Australia and potentially in Pakistan. [Pastor E] also referred to his reluctance to be ‘exposed publicly’. For the reasons stated above, the Tribunal does not accept that the applicant is genuinely committed to Christianity, or that he avoided practising or exploring the faith in Australia due to any fears (including the fear of his housemate cutting his alleged financial support for the applicant, or any further ramifications on the applicant’s return to Pakistan). The Tribunal therefore does not accept that the applicant would be motivated to further explore Christianity in Pakistan, to get baptised there or engage in any other practices, but that he would have to refrain from such activities in order to avoid a real chance of persecution.

28. For the reasons stated above, the Tribunal does not accept that the applicant’s family and community came to view him as pro-Christian or anti-Islamic due to any relationship he had with a Christian girl in Mansehra. The Tribunal accepts that the applicant may have met a [Country 1] woman on a dating site, but it is apparent that the couple are yet to meet in person or make firm plans for the future. Issues such as their compatibility, future activities together and any eventual commitment to each other are therefore highly speculative. The Tribunal finds no real chance of the applicant’s on-line contact with this person to date, or their future meeting in Australia later this year, being of adverse interest to his family or others; let alone motivating them to seriously harm him on religious or any other s.5J(1) grounds.

1. As noted in the delegate’s decision record, the applicant left the question on religion on his protection visa application form blank. Having rejected his claim to be a Christian, or a person interested in becoming a Christian, the Tribunal is left with the suggestion that the applicant is at most a nominal Muslim or a person who is basically not interested in religion. Although he claimed that his family is devout and his area is very strict, he did not claim and there is nothing before the Tribunal to suggest, that a mere lack of interest in or engagement with religion generally gives rise to a real chance of persecutory harm.

2. The Tribunal accepts, on the basis that it is plausible, that the applicant’s parents and family are keen for him to marry, taking into account among other things traditional attitudes to marriage in Pakistan. Given its adverse view of the applicant’s credibility as a whole, the Tribunal is not satisfied that they have ‘demanded’ that he marry a cousin in the past; or that they are resentful that he refused to comply. On the available material, the Tribunal finds no real chance of the applicant’s parents or others inflicting serious harm amounting to persecution on the applicant, for any reason associated with any marriage plans.  

3. The Tribunal has considered the applicant’s claims, individually and cumulatively. It finds no real chance of his family or broader community (including the jirga) seriously harming him for reason of his religion (actual or perceived), or any s.5J(1) reason.

4. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Pakistan. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

5. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan. It takes into account its findings of fact above, the applicant’s future conduct and relevant country information.

6. The Tribunal has rejected above the applicant’s claims that his family, members of his community or others have an adverse interest in him, due to any past relationship, attitudes (perceived or actual) to religion, activities in Australia (namely his visits to [Pastor E]) or this current on-line contacts with [a Country 1] woman. It assesses that none of these circumstances give rise to a real risk that he will suffer significant harm as defined in s.36(2A).

7. The applicant referred in his written and oral evidence to the relative freedom and equality found in Australia, and conversely, to the conservative values and religious restrictions in Pakistan. His references to the prevalence of arranged marriages and consequences of religious conversions – neither of which the Tribunal accepts gives rise to a real chance of persecution, or a real risk of significant harm in his own personal circumstances – illustrate these broad concerns. Based on the applicant’s past experiences, however, the Tribunal does not accept that the applicant faces a ‘real risk’ of suffering significant harm as a result of these general social or cultural conditions.[4]  Also, these issues apply to a greater or lesser degree through most of Pakistan, and affect the population generally, although given the Tribunal’s conclusion that the applicant does not face a real risk of significant harm, it is unnecessary to consider whether s.36(2B)(c) applies such that there would be taken no to be a real risk to him personally.   

   [4] The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

8. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as: - (a) to meet the definition of torture; or (b) to meet the definition of cruel or inhuman treatment or punishment; or (c) to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Pakistan.     

9. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   CONCLUSION

10. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2).

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a protection visa.

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

    Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.